Tampon Tax Be Gone: What the US Can Learn from India’s #LahuKaLagaan Repeal (Part I/II)

Tampon Tax Be Gone: What the US Can Learn from India’s #LahuKaLagaan Repeal (Part I/II)

-Dr. Bridget J. Crawford

The United States has much to learn from India, including lessons about the relationship between taxation and gender equity.

In June, 2018, India’s Goods and Services Tax (GST) Council agreed to eliminate the 12 percent tax imposed on menstrual hygiene products such as sanitary pads and tampons. Repeal came after years of public awareness campaigns and protests, such as the #LahuKaLagaan social media project; the internet-based petition organized by member of Parliament Sushmita Dev and signed by more than 400,000 people; and an in situ guerilla art installation by students at Jamia Millia Islamia University that spread to multiple schools. The Mumbai-based non-governmental organization SheSays even filed legal action in Bombay’s High Court seeking an injunction against the imposition of GST on menstrual hygiene products and forcing the government to provide low-cost products and education around menstruation. With international eyes trained on India, the GST Council removed the tax on products that girls and women use because of their involuntary, biological processes.

In the first post of this series, I will provide the Indian readers with an overview of the United States taxation system and the responses to the tampon tax in the United States. I will also discuss why the tampon tax, in either country, is a matter of concern. In the second post, I will discuss how such taxation may constitute gender discrimination and a possible human rights violation, followed by a discussion on how disparate treatment in taxation is made visible in this situation, and impacts of choices made in taxation policy.

The US sales tax system

In the United States, there is no national GST or VAT. Each of the fifty states can decide for itself whether to impose a tax on the sale of goods, and if so, what the rate and scope of the tax will be. State sales tax percentages range from approximately 2.9% to 7.25%.[1]

Some US states do not impose any sales tax at all. Other states have a sales tax, but they specifically exempt menstrual hygiene products from taxation.[2] Still another group of states taxes menstrual hygiene products, but exempts from taxation those items that fall into a general category of “necessities,” such as groceries and clothing below a certain value. In Georgia, for example, tattoos and piercings are tax-free, but tampons are not. In West Virginia, manicures escape taxation but sanitary pads do not.

This is similar to the situation in India prior to June, 2018, when sindoor was tax-free, but sanitary pads were taxed. Voicing the frustration of many, one woman remarked, “I would like to ask the Prime Minister Narendra Modi, is he aware of how many Indian women use sindoor? But every single woman could benefit from the use of the sanitary pads.” By pointing out these seemingly illogical distinctions between what the law considers as tax-free necessities and taxable luxuries, activists appeal to taxpayers’ common sense. Once confronted with the reality that women need menstrual hygiene products in order to work, to attend school and to participate in public life, most people quickly see that the tax is unfair.

Because of increased public awareness followed by public pressure, five states – Connecticut, Florida, Illinois, Nevada and New York – and the District of Columbia repealed their taxes on menstrual hygiene products in 2016 or after.[3] That leaves thirty-five states in the US where customers must pay tax on sanitary pads, tampons and similar menstrual hygiene products.

Several US states likely will consider repealing their tampon taxes in the current or upcoming legislative sessions. Indeed, legislative repeal is most expedient way to accomplish change. It appears that Texas lawmakers finally may decide to treat sanitary pads and tampons as tax-free, just as cowboy boots are. But in states where lawmakers have declined to take up the issue, it may be necessary to sue to eliminate the tampon tax.

In 2016, plaintiffs filed class action suits in four US states. Two cases were voluntarily withdrawn when the states prospectively repealed their tampon tax. One case was dismissed on procedural grounds and another is pending appeal.[4]

Why tampon tax matters

At an immediate level, the imposition of a GST, VAT or sales tax on commercial menstrual hygiene products matters only to those who can afford tampons or sanitary pads. One Indian newspaper claims that most women in India do not use these products and posits that “millions of women living in poor rural areas resort to rags or even ashes, sawdust and leaves, boosting the risk of infections and disease,” perhaps fulfilling some stereotype that urbanized or international readers have about rural practices. A UNICEF-sponsored study found that 28% of girls in Bihar and Jharkhand used of sanitary pads and 74% reporting used cloth or homemade pads. 8% had never heard of sanitary pads. Some observers have criticized the UNICEF research as contributing to the myth that the majority of Indian women engage in unsafe practices in an effort to (ineffectively) disguise a not-very-hidden agenda on the part of international companies to sell products in India. Indeed, there is an entire industry fueled by what I have called “menstrual capitalism,” with businesses seeking to profit from women’s biology, frequently while peddling a soft message about women’s empowerment.

But to label the tax on menstrual hygiene products as a problem of elite women only is to risk missing the point that there may be other girls and women who would like to use commercial products but cannot afford them. Approximately 80% of the UNICEF study participants reported that cost of commercial menstrual hygiene products was the primary reason they used cloth instead. Part of the cost of a product includes, for practical purposes, any associated tax. Thus GST, VAT or sales tax on menstrual hygiene products is an issue that is relevant to all women, who otherwise may be denied a choice between commercial products and cloth or homemade pads.

Indeed, if girls and women are to have full access to all aspects of political, social and economic life outside the home, they must have access to materials that absorb menstrual blood reliably and in the safest way possible. And women worldwide, not just in developing countries, struggle with access to these materials. For example, in 2016, local lawmakers in the US capital, the District of Columbia, heard testimony about how many women in homeless shelters resort to “using toilet paper, paper towels, or diapers in lieu of sanitary pads or tampons as they are either cheaper or available for free.” Access to cloth (and water to wash the cloth) is far from certain for many women all over the world. And even if cloth is a viable option for some, girls or women may still prefer to have access to more reliable commercial products. The more expensive those products are, including the tax, the less likely it is that low-income (or no-income) women will be able to afford them.

[1] See, e.g., Jared Walczak & Scott Drenkard, Tax Found., State and Local Sales Tax Rates 2018 (2018), https://files.taxfoundation.org/20180313143458/Tax-Founda tion-FF572.pdf (reporting that of forty-five states with a sales tax, the lowest rate of 2.9% is in Colorado and the highest rate of 7.25% is in California; with the addition of county or municipal tax, the total effective sales tax rate may be higher).

[3] Nevada represents an unusual case because that state requires voter approval for any alteration to the tax laws. In the most recent state-wide referendum held on November 6, 2018, voters approved repeal of the Nevada’s tampon tax by a vote of 56.49%.

Dr. Bridget J. Crawford is the James D. Hopkins Professor of Law at the Elisabeth Haub School of Law at Pace University in White Plains, New York, USA. She is a graduate of Yale University (BA), the University of Pennsylvania (JD) and Griffith University (PhD). Her research interests include property law, especially inheritance; taxation; trusts and equity; corporate law and policy; and feminist legal theory. Her published work has appeared in a wide range of international journals.

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